Stevens: Speculation Grows Over Stevens Resignation

250px-John_Paul_Stevens,_SCOTUS_photo_portraitDue to its cultural insularity and secrecy, legal commentators often have to act like old Sovietologists who would predict shifts in power by who in the Politburo was standing where on top of Lenin’s tomb. For Supremologists, there are other common indicators: the most prominent is the reduction of judicial clerks. Speculation over Stevens’ retirement is now at its peak with news that he has selected only one clerk for next year. I will be discussing this story on tonight’s Rachel Maddow.

A retirement for Stevens next year would certainly make sense. He will be 90. To secure the record as the oldest justice to serve on the Court, he would have to serve under Feb. 24, 2010 to beat Oliver Wendell Holmes’ record. To set the record as the longest serving justice, he would have to serve until 2012.

More importantly, the vacancy would occur at the ideal time if he wanted to ensure a liberal to replace him. As you get close to the end of the first term (particularly with Obama’s popularity plummeting in polls), it becomes more difficult to get through a nominee and even harder to get through a liberal. Many liberals are disappointing in the appointment of Sotomayor who was on the short list for George Bush and often voted against liberal positions on the Second Circuit. If she votes the way she did as a Second Circuit judge, liberals will lose ground on the Court. Stevens is a liberal icon and liberals are likely to demand a true liberal as a replacement.

Despite his age, Stevens has remained remarkably sharp. Indeed, I am often asked why my proposed reform of the Supreme Court does not include an age limitation or mandatory retirement. I also answered in three words: John Paul Stevens. The last ten years of Stevens’ opinions in my view have been his best. He improved with time and anyone who meets him is surprised how undiminished his intellect and acumen are with age. Unlike William Douglas and Thurgood Marshall who were greatly diminished by age and raised disturbing questions of competence at the end of their service, Stevens remains an eloquent and active member of the Court.

I have never hidden my love for Stevens. I most value his understated demeanor and self-effacing character. Indeed, while other colleagues relish in celebrity status, Stevens has largely followed a traditional view of a justice in making relatively few speeches and staying out of the public eye. Indeed, I once flew to Milwaukee on the same plane with Stevens and his wife. We were both speaking to the judges of the Seventh Circuit. While I stood speaking with Stevens, a lawyer ran up saying “I am your biggest fan.” He then shook my hand. I proceeded to introduce Justice Stevens to the lawyer who turned beet red and made a fast retreat. On the plane, one passenger actually hit Stevens with her carry-on luggage — never realizing this was a justice who has had a transformative impact on our society. That is how Stevens and his wife clearly prefer it.

While other justices have selected a full panoply of clerks only to tell them later of their retirement. That would not be in Stevens’ character. He is a remarkably kind man who would likely view such a surprise as unfair to these clerks. None of this means that this is a certain thing. Even if he is thinking of resigning, he can always change his mind and pick up a couple more clerks. However, in predictive environments, this is one of the strongest.

15 thoughts on “Stevens: Speculation Grows Over Stevens Resignation

  1. The Warren/Berger/Souter Justices can tell you exactly that you may not get what you think. It is a risk and Brennan was in my time the Best Supreme Court Justice ever. The most balanced and sometime you could read in his opinions his heartfelt disappointment in having to render a decision.

    If there were two Supreme Court a Civil and Criminal I think that America could benefit greatly. Brennan got the Criminal Cases hands down. The Civil Cases, even some of those I disagree with. However, I could rest assured that he would give either the best try.

  2. The entire federal judiciary is said to be more “conservative” than it has been since the Great Depression days of the 1930’s, so I agree that a justice more “liberal” than Sotomayor is needed.

  3. The four oldest justices have been those who fairly reliably come down on the liberal side. We’ve yet to see how Justice Sotamayor will find her niche. The younger justices are its more conservative with Justice Kennedy holding the middle ground in both age and temperment.

  4. he will resign or die during Obama’s tenure it is a metaphysical certainty.

    Hopefully he will resign as opposed to leaving the mortal coil and have a few years of deserved leisure.

  5. why thank you rifle.
    its always a pleasure to hear from you and people like you who clearly know what they like and what they want but cant seem to wrap their heads around one idea: abortion isn’t any of your business. don’t want one? fine, don’t have one.
    don’t want someone telling you what to do with your body? why I’ll bet you don’t.
    good then. you don’t get to tell someone else what to do with her body.
    end of discussion and thanks for playing.

  6. Prof. Turley seems so down all the time about Sonia Sotomayor not being liberal enough so it begs the question: Back in 1990, did Prof. Turley think David Souter would be “liberal” enough?

  7. How you see this scenario playing out: Harold Koh replacing John Paul Stevens and Diane Wood replacing Ruth Baden Ginsburg?

    Considering we have Clarence Thomas to thank for Wells v. Donofrio getting major press attention, who you take my bet he’d never retire during an Obama administration, and for whatever reason, a Biden administration?


    A “Jewish Seat” question for fun. In a hypothetical situation where both Ruth Bader Ginsburg and Stephen Breyer both retire and/or die (hopefully the former) before the 2012 U.S. presidential election, two questions. First do you see President Obama continuing the “Jewish Seat” tradition? Secondly, if he did continue it, what Jewish legal minds, in courthouse or law school or elected office, do you see him picking (not just the ones you like)?

  9. Another hypothetical question… If Barack Obama were to die, be impeached or resign before Nov. 6, 2012, how would you see a President Biden’s process and final decision for picking a replacement for SCOTUS? How would be similar to Barack Obama? How would be it be different from Barack Obama?

  10. Betting politicians won’t be making Professor Turley’s Top 5 potential replacements list. I

    Just for fun, if Prof. Turley could only pick his replacement candidates from people who are either currently or in past have served in elected office (federal, state or municipal) and no solely academics, attorneys, judges, etc… who would they be? I mean they don’t have to be the obvious ones like Jennifer Granholm, Janet Napolitano or Deval Patrick if you’re not a fan of any them, although maybe you are? But among the politicos, would be it be?

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